June 12, 2017
9th Circuit Court Upholds freeze on Trump's Muslim Ban 2.0
By Abdus Sattar Ghazali
In the latest legal setback for the Trump administration, the 9th U.S. Circuit Court of Appeals Monday (June 12) upheld an earlier decision by a federal judge in Hawaii to block President Donald Trump's executive order known as Muslim Ban 2.0.
Today's unanimous ruling noted, "The President's authority is subject to certain statutory and constitutional restraints," but that Trump's revised executive order "exceeded the scope of the authority delegated to him by Congress."
The ruling also states: "A reasonable, objective observer - enlightened by the specific historical context, contemporaneous public statements and specific sequence of events leading to its issuance - would conclude that the executive order was issued with a purpose to disfavor a particular religion."
The three judges ruled unanimously that the president's overhauled travel ban "exceeded the scope of the authority delegated to him by Congress" under federal immigration law, because the executive order did not contain "a sufficient justification to suspend the entry of more than 180 million people on the basis of nationality."
According to the ABC News, at the heart of the 9th Circuit opinion Monday is the panel's determination that the president failed to show in his executive order that there were specific national security justifications for excluding nationals of the six designated Muslim countries (Iran, Libya, Somalia, Sudan, Syria and Yemen).
The circuit court also held that Trump failed in the executive order to "reveal any threat or harm to warrant suspension of [refugee admissions] for 120 days and does not support the conclusion that the entry of refugees in the interim time period would be harmful."
As in previous rulings, the appeals panel cited remarks by Trump that seemed to contradict his administration’s attorneys, who had argued that the order, despite the president’s rhetoric, was narrow in scope and not discriminatory in nature. They went on to cite the president’s most recent tweet on the ban, from June 5:
"That's right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won't help us protect our people!"
Interestingly, in a filing with the Supreme Court Monday, the plaintiffs in the Maryland case argued that the controversy is about to become moot because the entry ban was meant to last for only 90 days and that period ends two days from now.
White House remains defiant
In the face of yet another courtroom defeat, the White House remained defiant. Press secretary Sean Spicer dismissed the ruling, and said the White House remained confident it would be vindicated by the Supreme Court.
“Frankly, I think any lawyer worth their salt 100 percent agrees that the president is fully within his rights and his responsibilities to do what is necessary to protect the country,” Spicer told reporters at the White House. “I think we can all attest that these are very dangerous times and we need every available tool at our disposal to prevent terrorists from entering the United States.”
Attorney General Jeff Sessions vowed to press the Supreme Court to take up the issue. He also denied that the travel ban has any relation to religion.
“President Trump’s Executive Order is well within his lawful authority to keep the Nation safe. We disagree with the Ninth Circuit’s decision to block that authority," Sessions said in a statement Monday evening. "The President was clear in his landmark speech in Saudi Arabia: this is not about religion; it is about national security ... Unfortunately, this injunction prevents the President from fully carrying out his Article II duties and has a chilling effect on security operations overall.”
4th Circuit Court
It may be recalled, on May 25, a federal appeals court in Richmond, Virginia, refused to lift a nationwide injunction that halted a key provision of President Donald Trump’s revised travel ban on six Muslim nations.
U.S. Chief Circuit Judge Roger Gregory wrote that the text of Trump’s executive order, which was challenged in courts across the country for targeting members of a particular faith, “speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”
“Congress granted the President broad power to deny entry to aliens, but that power is not absolute,” Gregory wrote in a ruling that largely upheld the original block on the travel ban. “It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation.”
CAIR Welcomes
The Council on American-Islamic Relations (CAIR), the nation's largest Muslim civil rights and advocacy organization, Monday welcomed a unanimous ruling by the three-judge 9th U.S. Circuit Court of Appeals upholding an earlier decision by a federal judge in Hawaii to block President Donald Trump's revised "Muslim ban" executive order.
"Today's ruling once again demonstrates the near-unanimity of judges in ruling against any type of 'Muslim ban,'" said CAIR National Litigation Director Lena Masri. "We welcome this ruling and believe it and the previous rulings in different courts outline a clear path that the Supreme Court should follow."
Masri noted that CAIR filed an amicus ("friend of the court") brief in the case.
Last month, CAIR similarly welcomed a ruling by the full panel of 13 judges on the U.S. Court of Appeals for the 4th Circuit in Richmond, Va., that refused to lift a nationwide injunction blocking President Trump's revised "Muslim ban."
Abdus Sattar Ghazali is the Chief Editor of the Journal of America.
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